Who’s the Estate Trustee if there’s No Will?

September 8, 2014 Hull & Hull LLP Uncategorized 0 Comments

When someone dies without a Will, it’s called an “intestacy”.  Administration of an estate upon intestacy is generally more complicated than the administration of an estate with a Will.

First, no one will have authority to handle your estate until formally appointed by the Court. In Ontario, the Superior Court of Justice will appoint an ‘Estate Trustee Without a Will’ to be the personal representative of your estate.

Section 29(1) of the Estates Act provides the Court with the authority to appoint the ‘Estate Trustee Without a Will’, and sets out the statutory formula for choosing this individual. Specifically, s. 29(1) allows the court to appoint the deceased’s:

(a) spouse/common law partner;

(b) next of kin; or

(c) spouse/common law partner and next of kin.

Where there are several individuals “equal in degree of kindred” asserting rights as next of kin, the Court has the authority to appoint more than one person. However, general practice of the Courts has been to prefer the spouse/common law partner’s right to the appointment over that of the next of kin. In addition, each individual appointed must be a resident of Ontario.

Further, in the event of intestacy, the provincial government decides how your assets will be divided – not you, or your spouse/next of kin should they be appointed as the ‘Estate Trustee without a Will’.  Sections 44 – 47 of Ontario’s Succession Law Reform Act outline the laws of intestacy that govern this distribution.

In Ontario, the spouse of the intestate person will collect the entirety of the estate if the intestate has left no children. If the intestate leaves children and a spouse, the spouse typically gets a preferential share of $200,000. Accordingly, if the net value of the deceased’s estate is less than $200,000, the entirety of the estate goes to the surviving spouse, regardless of whether the intestate had children. However, if the net value of the estate is greater than $200,000 and the intestate had children, the surviving spouse will be entitled to the first $200,000. The remaining residue of the estate will then be divided 50/50 between the surviving spouse and the child, if there one child, or if there are two or more children, one-third of the estate will go to the spouse and the rest will be divided amongst the children.

If the intestate left no spouse or children, then the intestate’s parents stand to inherit. If no parents survive the intestate, then the intestate’s brothers and sisters inherit. If no siblings exist, then nephews and nieces inherit. If no nephews or nieces exist, the law computes inheritance based upon the degree of consanguinity (blood relatives). Grandnephews and grandnieces, grandparents, first cousins and the like are considered in order of how closely they are connected by blood to the intestate.

Therefore, the administration of an estate without a Will can be quite time consuming and complicated. It also prevents you and your loved ones from having a say in what happens to your estate. To avoid uncertainty and unnecessary complications it’s wise to make a Will.

Thank you for reading,

Ian Hull


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